Ridgeview Partners, LLC v. Entwistle
| Decision Date | 27 January 2005 |
| Docket Number | No. 01 CIV.10248I(SCR).,01 CIV.10248I(SCR). |
| Citation | 354 F.Supp.2d 395 |
| Parties | RIDGEVIEW PARTNERS, LLC Plaintiff, v. Maureen ENTWISTLE, individually and as Chairperson of the Town of Greenville Planning Board, Paul Ewanciw, Scott Reed, John Karecki, Allen Bobb, Leo McCarey, Cynthia Ewanciw Morse, individually and as Members of the Town of Greenville Planning Board, Michael Sussman, individually and as Special Counsel, The Town of Greenville Planning Board, The Town of Greenville, Defendants. |
| Court | U.S. District Court — Southern District of New York |
James G. Sweeney, Goshen, NY, for Plaintiff.
John J. Walsh, Boeggeman, George, Hodges & Corde, P.C., Mark Seiden, Milber Makris Plousadis & Seiden, LLP, White Plains, NY, Michael Sussman, Law Offices of Michael H. Sussman, Goshen, NY, for Defendants.
Plaintiff RidgeView Partners, L.L.C. ("RidgeView") brings a partial motion for summary judgment on the issue of liability and seeks to have the defendants' defenses of good faith / qualified immunity and the need to exhaust state court remedies stricken. Plaintiff also moves for a motion in limine. Defendants have filed a cross motion for summary judgment and a motion in limine. Defendant Michael Sussman has filed a cross motion for summary judgment and a motion to dismiss. Each motion and those that relate to it, as applicable, is considered independently in this order.
On January 24, 2001, RidgeView filed a subdivision/site plan application for the development of over 1,500 townhouses on 435 acres with the Defendant Town of Greenville Planning Board (the "Board"). RidgeView paid the application fee and supplied the escrow account initial fee as required under Town of Greenville Code ("Town Code") A212-6. At the behest of the Board, Mark Fellenzer (the "Engineer") review the application. In a February 2001 letter, the Engineer pointed out several deficiencies in the application. He considered the site a major subdivision because it included a plan for central water and sewer systems and road system. He concurred with RidgeView that it should complete another portion of the State Environmental Quality Review and prepare an Environmental Impact Statement. A Board meeting was held on March 12, 2001, to discus the application. At that meeting, RidgeView's counsel received a copy of the Engineer's February letter, and a workshop session and public hearing were scheduled for March 26 and April 25, 2001, respectively.
On March 14, 2001, RidgeView's counsel reminded the Board that RidgeView "agreed to reimburse the Town for the reasonable amount of these ongoing costs" in reference to the costs of the "professionals" hired by the Town to review the proposal although RidgeView was not aware of any law requiring said agreement. RidgeView's counsel also objected to a "100% pass through of all costs to the developer, no matter what the amount or service is, I believe, illegal" and reserved the right to question all costs. RidgeView then stated it would deposit a reasonable sum at the outset of the review process and "replenish the fund from time to time upon being presented with evidence of the reasonable charges that are being charged against the fund."
The March 26, 2001, workshop session was cancelled by the Board and RidgeView was notified. On March 27, 2001, RidgeView commenced a N.Y. CPLR Article 78 Proceeding ("Art. 78 proceeding") in New York State Supreme Court seeking an order to compel the board to hold the workshop session. Defendants filed an answer and other necessary documents. The Board also hired Mr. Michael Sussman to act as a facilitator and to make legal determination regarding issues presented by the proposal. Defendants claim Sussman was retained "at the consent of the plaintiff."
The Engineer, now formally retained by the Board, continued to review the application and sent a letter on April 10, 2001, regarding errors in the application. Sussman sent a letter on May 31, 2001, to RidgeView's counsel stating that the matter would not be voted on until the Supreme Court reached a decision on the Art. 78 proceeding but suggested that RidgeView meet informally with the Engineer to work out some of the issues. No such meeting took place. Instead, RidgeView withdrew its first application on July 2, 2001, and submitted a second site plan application for the same parcel of land with an increased number of dwelling units to be built to over 2,000 units. Accordingly, RidgeView sent a letter to the Supreme Court, copied to the Board, advising it had withdrawn its first application, and the Art. 78 proceeding was, therefore, moot.
On July 23, 2001, Sussman sent RidgeView's counsel a letter stating the following "reasonably incurred expenses" were owed with regard to the first application: (1) Planner David Church — $400; (2) Planner Mark Fellinzer (the Engineer); and (3) Attorney Michael Sussman — $1500. Sussman then stated: "Assuming [RidgeView's] payment of these incurred expenses, the Planning Board shall proceed to review [RidgeView's] new proposal at its August 20 meeting." In response, RidgeView's counsel offered no objection to paying for reasonable fees of consulting professionals incurred by the Board for both the first and second applications. However, he added a condition to payment — detailed statements or vouchers must be given to RidgeView. RidgeView objected to payment for legal fees related to the defense of the litigation. RidgeView further demanded that the matter be on the August meeting's agenda whether or not the payments were made by RidgeView at that time.
The Engineer reviewed the second application and reported back to the Board on August 13, 2001, by letter that there were discrepancies and deficiencies. The Board asserts this letter proves the Board accepted the application for review. RidgeView disagrees. At the August 20, 2001, Board meeting, the application was not discussed at least partly, according to Defendants, because of the deficiencies of the second application which was deemed incomplete. The Board Chairperson, Maureen Entwistle, later testified that Sussman advised her that the Board was not required to review the second application until the fees association with the first application were paid because the Board had not been advised by the Supreme Court that the Art. 78 proceeding had been discontinued. RidgeView filed the instant action on November 20, 2001.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Egineering Corp., 221 F.3d 293, 300 (2d Cir.2000); see also Fed.R.Civ.P. 56(c). The moving party must show the absence of any issues of material fact. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997).
Plaintiff RidgeView moves for partial summary judgment on the issue of liability of the Defendants. First, RidgeView claims the Board's refusal to receive and process RidgeView's second application was a denial of RidgeView's right to petition the Government under the First Amendment. Before addressing the legal issue as to whether RidgeView's First Amendment right to petition was violated, it must be established that the Board did indeed refuse to receive and process RidgeView's second application. RidgeView claims that the Board refused to receive and process the second application. Defendants, however, maintain the Board accepted the second or amended application and began review of the application by offering the Engineer's August 13, 2001, letter. In that letter, the Engineer reviewed the second or amended application for the Board in the same manner as he dealt with the first application. This is potentially evidence that the second application was accepted and review had begun. As opposing parties have produced evidence of this fact that is contradictory, it appears there may be a factual dispute.
Without a clear answer as to the factual question of whether the Board received and began processing of the second application, it is impossible for this Court to make any legal determinations that are dependent on that fact. RidgeView bases its various constitutional claims on the refusal of the Board to accept the second application. Consequently, if the Court were to find that the Board did receive the second application, then RidgeView's legal arguments, as they pose them, would be moot. Indeed, this factual question appears to be one of historical nature — the factual determination impacts the existence of the matter. It is reasonable that a fact finder could conclude based on the evidence that the Board accepted and began take action on the second application, or, alternatively, the Board took no action and refused to merely accept the application for processing. Such determinations are for the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
This analysis applies also to RidgeView's claims that (1) the refusal of the Board to receive the second application because of the commencement and maintenance of its Art. 78 proceeding violates its right to free speech and to petition the government guaranteed to it by the First Amendment; (2) the Board's refusal to receive the second application is a violation of a protected property right, the delivery of fundamental governmental services, guaranteed to it under the Due Process Clause of the Fourteenth Amendment; (3) the Board did not proceed on RidgeView's second application but did with other applicants having delinquent escrow accounts in violation of the Fourteenth Amendment on Equal Protection grounds; and (4) the Board imposed an impermissible unconstitutional condition...
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